Old Dominion Branch No. 496 v. Austin

MR. Justice Douglas,

concurring in the result.

As the Court states, this case calls upon us to determine the extent to which state libel laws may be used to penalize statements expressed in the course of a labor dispute. In this instance Virginia’s libel laws were used to impose massive damages1 upon a labor union for publicly expressing, during the heat of an organizational drive, its highly pejorative but not too surprising opinion of “scabs.” I agree that this expression is protected and that the judgments below cannot stand. Unlike the Court, however, I do not view the task of reconciling the competing state and federal interests in this area as a difficult one, nor do I view the federal interest as merely a matter of federal labor policy. I think that such expression is constitutionally protected and I cannot agree that there might be situations “where the use of *288this writing or other similar rhetoric in a labor dispute could be actionable.”

I agree with the Court that federal labor policy, as manifested both in the NLRA and in Executive Order 11491, favors uninhibited, robust and wide open debate in labor disputes. I disagree with the Court, however, on the reach of that policy. I think that the pre-emptive effect of federal labor regulation is such that States are prohibited from interfering with those federally regulated relations by arming disputants in labor controversies with an arsenal of defamation laws. See Linn v. Plant Guard Workers, 383 U. S. 53, 69 (Fortas, J., dissenting). Though referring to this state of affairs as federal labor policy, I expressly reject any implication that the policy could be otherwise were Congress or the Executive to reassess the underlying considerations and attempt to reformulate the policy.

We said in Thornhill v. Alabama, 310 U. S. 88, 102, that, “[i]n the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” 2 Since I do *289not think that discussion is free in the constitutional sense when it subjects the speaker to the penalty of libel judgments, in my view the ability of Congress or the Executive to formulate any labor policy penalizing those who might “say naughty things during labor disputes’’3 is precisely nil. I believe the Framers did all the policy-making necessary in this area when they devised the constitutional framework which binds us all. As I stated in Gertz v. Robert Welch, Inc., post, at 356-357, the First Amendment would prohibit Congress from passing any libel law 4 and the limitation on labor policy formulation is but an example of the general restriction.

If the States were not limited to the same extent as the Federal Government in restraining discussion, the pre-emptive effect of federal labor regulations would be crucial. But I have always thought that the application of the First Amendment to the States through the Fourteenth 5 leaves the States as constitutionally impo*290tent as the Federal Government in enforcing such restrictions. This conclusion is compelled if freedom of speech is regarded, as I think it must be, as a privilege or immunity of United States citizenship within the meaning of that term in the Fourteenth Amendment rather than some ephemeral right protected against state intrusion only to the extent a majority of this Court might view as “implicit in the concept of ordered liberty.”6 As I stated in my dissent to Gertz v. Robert Welch, Inc., post, at 358-359:

“[T]he Court frequently has rested state free speech and free press decisions on the Fourteenth Amendment generally rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of 'privileges and immunities’ of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgement than the freedoms of speech and of the press.”

Since labor disputes are “ 'within that area of free discussion that is guaranteed by the Constitution’ ” and since in my view the States and the Federal Government are equally bound to honor that guarantee, the fate of the libel award in this case is clear. “Discussion is not free . . . within the meaning of our First Amendment, if that discussion may be penalized by judgments for damages in libel actions.” Linn v. Plant Guard Workers, 383 U. S., at 68 (Black, J., dissenting). The extensive damages awarded in this case well illustrate that any protection short of a complete bar to suits for defamation will be cold comfort to those who enter the arena of free discussion in labor disputes. The imaginative vituperation which is commonplace in labor strife well exceeds the “normal” levels of hyperbole to which *291most members of the community may be accustomed. A jury determination in a libel suit, no matter what the standard of recovery, is as likely to be influenced by community attitudes toward unionization and the often colorful individuals involved in its promotion as by any real appreciation for the damage perceived as inflicted by any alleged falsehood.

Since I do not believe that the judgments below are consistent with either federal labor policy or with constitutionally protected free speech, I concur in their reversal.

The judgments in this case awarded damages of $165,000 but the total figure might be larger since at least one other suit arising out of the same publication has been held in abeyance pending the outcome of this appeal.

The view has been expressed that the First Amendment should accord protection only to explicitly political speech. See Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 20 (1971). Decisions such as Thornhill, however, reject any such emasculative reading of the First Amendment. As Mr. Justice Black has said: “There is nothing in the language of the First Amendment to indicate that it protects only political speech, although to provide such protection was no doubt a strong reason for the Amendment’s passage.” H. Black, A Constitutional Faith 46 (1969). The importance of free discussion in all areas was well perceived in this country before our constitutional scheme was formulated. In a letter sent to the inhabitants of Quebec in 1774, the Continental Congress spoke of “five great rights,” stating in part: “The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of *289truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government . . . .” 1 Journals of the Continental Congress 1774^1789, p. 108 (Ford ed. 1904) (emphasis added).

See Linn v. Plant Guard Workers, 383 U. S. 53, 67 (Black, J., dissenting).

See also Rosenblatt v. Baer, 383 U. S. 75, 90 (concurring). In explaining the constitutional history which led him to the same conclusion, Mr. Justice Black said of the Framers: “They knew what history was behind them; they were familiar with the sad and useless tragedies of countless people who had had their tongues plucked out, their ears cut off or their hands chopped off, or even worse things done to them, because they dared to speak or write their opinions. They wanted to ordain in this country that the new central government should not tell the people what they should believe or say or publish.” H. Black, A Constitutional Faith 46 (1969).

See, e. g., Stromberg v. California, 283 U. S. 359, 368-369; cases compiled in Gertz v. Robert Welch, Inc., post, at 359 n. 8 (Douglas, J., dissenting).

See Palko v. Connecticut, 302 U. S. 319.